Citation Nr: 0937459
Decision Date: 10/01/09 Archive Date: 10/14/09
DOCKET NO. 08-35 340 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to dependency and indemnity compensation, death
pension, and accrued benefits.
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
During World War II, the Veteran had service with the Regular
Philippine Army from July 1945 to July 1946. He was in
beleaguered status from December 1941 to May 1942; missing
status in May 1942; a prisoner of war from May 1942 to
November 1942; and no casualty status from November 1942 to
July 1945.
The Veteran died in November 2006, and the appellant is his
surviving spouse.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2008 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila, the
Republic of the Philippines.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The service department has certified that the Veteran's
dates of service were from December 1941 to June 1946,
stating he had service in the During World War II with
service with the Regular Philippine Army from July 1945 to
July 1946 and beleaguered status from December 1941 to May
1942; missing status in May 1942; prisoner of war status from
May 1942 to November 1942; and no casualty status from
November 1942 to July 1945.
2. An June 2002 VA Compensation and Pension Service
Forfeiture Decision found that records established beyond a
reasonable doubt that from November 18, 1942 to September 10,
1944, the Veteran performed services for the Philippine
Constabulary and was of assistance to the Imperial Japanese
Government in violation of the provisions of 38 U.S.C.A.
§ 6104(a), and the acts occurred in the Philippine Islands
before July 4, 1946.
3. The forfeiture action declared against the Veteran
precluded his rights to all benefits administered by VA, and
he did not receive, nor was he entitled to receive,
compensation for a service-connected disability at any time
during his life.
CONCLUSION OF LAW
The appellant has no legal entitlement to dependency and
indemnity compensation, death pension, or accrued benefits.
38 U.S.C.A. § 6104 (West 2002); 38 C.F.R. §§ 3.902, 3.904
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant claims that she is entitled to dependency and
indemnity compensation and/or death pension and accrued
benefits based on her status as a spouse of a deceased
veteran.
The appellant maintains her husband was a prisoner of war and
was taken by the Japanese forces. The appellant has made no
argument or claim regarding whether there was clear and
unmistakable error in the June 2002 VA Compensation and
Pension Service Forfeiture Decision.
The evidence of record confirms that, in its June 2002
Forfeiture Decision, VA Compensation and Pension Service
found that records established beyond a reasonable doubt that
from November 18, 1942 to September 10, 1944, the Veteran
performed services for the Philippine Constabulary and was of
assistance to the Imperial Japanese Government in violation
of the provisions of 38 U.S.C.A. § 6104(a). The acts
occurred in the Philippine Islands before July 4, 1946.
More specifically, the June 2002 Forfeiture Decision
indicates that the Veteran admitted that he served with the
Philippine Constabulary and he received preferential
treatment from the Japanese in the form of freedom movement
and remuneration. VA Compensation and Pension Service noted
that it was a well documented fact that the Japanese did not
"force" participation in the Bureau of Constabulary but
rather carefully screened its perspective members who were
selected from voluntary applications. Further, the
Forfeiture Decision stated it was recognized that the Bureau
of Constabulary or any of its components, as comprised during
the Japanese occupation of the Philippines, were tantamount
to Armed Forces of the Imperial Japanese Government. Such
organizations were created primarily to assist the Japanese
in, and were used for, apprehending guerrillas and guerrilla
suspects and in suppressing the underground resistance
movement in furtherance of the Japanese war effort against
the United States and its allies. Thus, the Forfeiture
Decision explained that the Veteran, as a member of the
Bureau of Constabulary, admittedly was involved in the
overall efforts of the Japanese Military to defeat the United
States and its allies, and the Veteran rendered assistance to
an enemy of the United States and its allies as provided in
38 U.S.C.A. § 6104(a) and as a result, forfeited all accrued
or future gratuitous benefits under the laws administered by
VA.
The Veteran did not appeal that decision. The forfeiture
action declared against the Veteran precluded his rights to
all benefits administered by VA. 38 U.S.C.A. § 6104(a); 38
C.F.R. § 3.902(b).
According to the death certificate in the claims file, the
Veteran died in November 2006. In June 2007, the RO received
from the appellant a VA Form 21-534, Application for
Dependency and Indemnity Compensation, Death Pension and
Accrued Benefits by a Surviving Spouse or Child. The
appellant also submitted proof of her marriage to the Veteran
in May 1946.
As a general rule, issues in a survivor's claim for death
benefits will be decided without regard to any disposition of
the same issues during the veteran's lifetime. 38 C.F.R. §
20.1106 (2009). Among the types of claims exempt from the
general rule are cases involving individuals whose VA
benefits have been forfeited for treason under the provisions
of 38 U.S.C.A. § 6104. Id.
Under VA regulations, a treasonable act is defined as an act
of mutiny, treason, sabotage, or rendering assistance to an
enemy of the United States or of its allies. 38 C.F.R. §
3.902(a). The law provides that any person shown by evidence
satisfactory to the Secretary to be guilty of mutiny,
treason, sabotage, or rendering assistance to an enemy of the
United States or of its allies shall forfeit all accrued or
future gratuitous benefits under laws administered by the
Secretary. 38 U.S.C.A. § 6104(a); 38 C.F.R. § 3.902(b).
In a case in which forfeiture by reason of a treasonable act
was declared before September 2, 1959, death benefits may be
paid where such benefits were authorized prior to September
2, 1959. 38 U.S.C.A. § 6104(c); 38 C.F.R. § 3.904(b).
Otherwise, no award of gratuitous benefits may be made to any
person based on any period of service commencing before the
date of commission of the offense that resulted in the
forfeiture. Id.
It is undisputed that forfeiture was declared against the
Veteran after September 2, 1959. Dependency and indemnity
compensation, death pension, and accrued benefits are all
gratuitous VA benefits, and the provisions of 38 C.F.R. §
3.904(b) therefore preclude the award of benefits being
sought by the appellant.
For these reasons, the Board concludes that the appellant has
no legal entitlement to dependency and indemnity
compensation, death pension, or accrued benefits. The claim
must therefore be denied as a matter of law. Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (when the law and not the
evidence is dispositive, the claim should be denied or the
appeal to the Board terminated because of the absence of
legal merit or the lack of entitlement under the law).
Because the law, and not the evidence, is dispositive in the
instant case, additional factual development would have no
bearing on the ultimate outcome. The United States Court of
Appeals for Veterans Claims has held that the statutory and
regulatory provisions pertaining to VA's duty to notify and
to assist do not apply to a claim if resolution of the claim
is based on statutory interpretation, rather than
consideration of the factual evidence. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001); see also Manning v.
Principi, 16 Vet. App. 534 (2002), citing Livesay v.
Principi, 15 Vet. App. 165 (2001). Accordingly, the Veterans
Claims Assistance Act of 2000 (VCAA) can have no effect on
this appeal. See Dela Cruz, 15 Vet. App. at 149; see also
Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not
applicable "because the law as mandated by statute and not
the evidence is dispositive of the claim").
ORDER
Entitlement to dependency and indemnity compensation, death
pension, and accrued benefits is denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs